Consulting Agreement dated January 7, 2011 with JBD Consulting Ltd. and Jeffrey Finkelstein

A.

The Company is engaged in the business of locating, acquiring and exploring natural resource mineral properties and has acquired interests in several mineral properties located in Argentina and in Canada.

B.

The Company wishes to obtain and the Contractor wishes to provide certain services to the Company on the terms and conditions contained in this Agreement.

C.

Finkelstein desires to join in this Agreement for the purposes expressed.

1.

DEFINITIONS. For the purposes of this Agreement (including the Schedules hereto), the following terms will have the following meanings:

 

(a)

failure of the Contractor and/or Finkelstein to observe any of the covenants and obligations hereunder that are not material, if the Contractor and/or Finkelstein does not remedy such failure within a reasonable time after receiving written notice thereof;

 

(b)

fraud, dishonesty, gross negligence or willful malfeasance in connection with the Contractor’s and/or Finkelstein’s performance of the Consulting Services; or

 

(c)

the conviction of the Contractor and/or Finkelstein in respect of a crime involving moral turpitude;

1.3.

“Change of Control” means:

 

1.3.1.

the acquisition, after the date of this Agreement and excluding any acquisitions from the Company, by any one individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities and Exchange Act of 1934), of beneficial ownership of 50% or more of either the then outstanding shares of common stock of the Company or the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors, which causes a change in the control of the Board resulting from the election by the shareholders of the Company of less than a majority of the persons nominated for election by management of the Company;

 

1.3.2.

the approval by the stockholders of the Company of a reorganization, merger or consolidation of the Company in which the individuals and entities who were the respective beneficial owners of the common stock and voting securities of the Company immediately prior to such reorganization, merger or consolidation do not, following such reorganization, merger or consolidation, beneficially own, directly or indirectly, 50% or more, respectively, of the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such reorganization, merger or consolidation; or

 

1.3.3.

a liquidation or dissolution of the Company or the sale or other disposition of all of the assets of the Company;

1.4.

“Common Shares” means shares of common stock of the Company;

1.5.

“Confidential Information” means information, whether or not originated by the Contractor or Finkelstein, that relates to the business or affairs of the Company, its affiliates, clients or suppliers and is confidential or proprietary to, about or created by the Company, its affiliates, clients, or suppliers.  Confidential Information includes, but is not limited to, the following types of confidential

 

information and other proprietary information of a similar nature (whether or not reduced to writing or designated or marked as confidential):

 

1.5.1.

the Company’s mineral properties, exploration results, estimated economic reserves, feasibility of mining the properties, as well as information relating to strategies, research, communications, business plans, and financial data of the Company and any information of the Company which is not readily publicly available;

 

1.5.2.

work product resulting from or related to work or projects performed for or to be performed for the Company or its affiliates, including but not limited to, the methods, processes, procedures, analysis, techniques and audits used in connection therewith;

 

1.5.3.

any intellectual property contributed to the Company, and any other technical and business information of the Company, its subsidiaries and affiliates which is of a confidential, trade secret and/or proprietary character;

 

1.5.4.

internal Company personnel and financial information, supplier names and other supplier information, purchasing and internal cost information, internal services and operational manuals, and the manner and method of conducting the Company’s business;

 

1.5.5.

marketing and development plans, price and cost data, price and fee amounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and forecast assumptions and volumes, current and prospective client lists, and future plans and potential strategies of the Company that have been or are being discussed; and

 

1.5.6.

all information that becomes known to the Contractor and/or Finkelstein as a result of this Agreement or the services performed hereunder that the Contractor and/or Finkelstein, acting reasonably, believes is confidential information or that the Company takes measures to protect.

 

1.5.7.

the general skills and experience gained by the Contractor and/or Finkelstein during the Contractor’s provision of the Consulting Services to the Company that the Contractor could reasonably have been expected to acquire in similar retainers or engagements with other companies;

 

1.5.8.

information publicly known without breach of this Agreement or similar agreements; or

 

1.5.9.

information, the disclosure of which by the Contractor is required to be made by any law, regulation or governmental authority or legal process of discovery (to the extent of the requirement), provided that

 

before disclosure is made, notice of the requirement is provided to the Company, and to the extent reasonably possible in the circumstances, the Company is afforded an opportunity to dispute the requirement.

1.6.

“Consulting Effective Date” means the date of this Agreement as shown on the first page hereof;

1.8.

“Consulting Services” means such services as are consistent with those ordinarily provided by a Chief Financial Officer, including the duties and responsibilities set out at Schedule “A” hereto as well as such other duties and responsibilities as may be reasonably required of the Contractor from time-to-time either in respect of the foregoing or otherwise by the Chief Executive Officer of the Company (the “CEO”) with respect to the Company and, if requested by the CEO, to any and all of its subsidiaries from time to time.

1.9.

“Consulting Anniversary Date” means the first anniversary of the date of this Agreement as shown on the first page;

1.10.

“Consulting Termination Date” means the first anniversary of the date of this Agreement as shown on the first page;

1.11.

“Directors” means the Directors of the Company, and “Director” means any one of them;

1.14.

“OTC-BB” means the over-the-counter bulletin board operated by the Financial Industry Regulatory Authority (FINRA);

1.15.

“Stock Option Agreement” means an agreement on the Company’s standard form of stock option agreement;

1.16.

“Stock Option Plan” means the Argentex Mining Corporation Stock Option Plan adopted by the Company on November 10, 2007;

1.17.

“Stock Options” means those options to purchase one hundred fifty thousand (150,000) Common Shares to be granted under the Stock Option Plan as described at Paragraph 3.2 herein;

1.18.

“TSX-V” means the TSX Venture Exchange.

1.19.

“Termination Fee” means a lump sum equal to the Consulting Fee (plus any applicable value added tax) for any of:

 

(i)

nine months plus one month for each year of service to the termination date;

 

(ii)

the remainder of the Term; or

 

(iii)

two months for each year that the Contractor has provided service to the Company since the Consulting Effective Date,

 

whichever is greater.

1.20.

“Vacation Time” means the Contractor’s entitlement not to provide the Consulting Services for up to 20 business days in each calendar year and does not include weekends or statutory holidays.

2.1.

This Agreement and each of its terms are subject to:

 

2.1.1.

the approval of or acceptance by the TSX-V if such approval or acceptance is required; or

 

2.1.2.

the absence of any objections by the TSX-V if approval of or acceptance by the TSX-V is not required.

2.2.

Effective on the Consulting Effective Date, the Contractor will cause Finkelstein to provide the Consulting Services to the Company and will ensure that Finkelstein:

 

2.2.1.

devotes sufficient working time, attention, ability and expertise to successfully provide the Consulting Services to the Company in a timely manner; and

 

2.2.2.

faithfully serves the Company and uses his best efforts to promote the best interests of the Company

2.3.

The Contractor and Finkelstein will report directly to the CEO and will keep the CEO informed of all matters concerning the Consulting Services as requested from time to time.

3.1.

 

3.1.1.

Subject to Paragraphs 3.1.2 and Section 4, below, from the Consulting Effective Date to the Consulting Termination Date, the Company will pay the Contractor the Consulting Fee.  The Company,

 

as it may determine from time to time in its sole discretion, may grant the Contractor an increase in the Contractor Fee.

 

3.1.2.

The remuneration referred to in Paragraph 3.1.1 will be payable at the end of each month upon receipt of an invoice, and does not include applicable taxes.  To the extent that the Contractor is required to remit PST, GST, HST or any similar service tax, the Contractor will show the applicable tax amount as a separate line item on the Contractor’s invoice for services and provide the Company with the Contractor’s PST, GST, HST or other applicable registrant number.

 

3.2.1.

Subject to compliance with all applicable laws, regulations and rules of any governmental authority, quotation system or stock exchange, and subject further to approval by the TSX-V if required, on or as soon as is reasonably possible following the Consulting Effective Date, the Company will grant the Stock Options to Finkelstein.  The Stock Options shall have an exercise price equal to the closing price, last sale of the day, on the OTC-BB or the TSX V, at the Company’s discretion, on the date the Stock Options are granted and a term of three years from the date of grant.

 

3.2.2.

The Stock Options will vest in four equal quarterly instalments, with the first instalment vesting on the first day of the third calendar month following the Consulting Effective Date, all in accordance with the Stock Option Plan.

 

3.2.3.

The Stock Options will be granted subject to the terms of the Stock Option Plan, as the same may be amended from time to time, and the Stock Option Agreement.  In the event of any inconsistency among this Agreement, the Stock Option Agreement and the Stock Option Plan, the terms of the Stock Option Plan will control.

3.3.

 

3.3.1.

If and whenever the Common Shares at any time outstanding are subdivided into a greater or consolidated into a lesser number of common shares, the exercise price of the Options must be decreased or increased proportionately, as the case may be, and upon any such subdivision or consolidation, the number of Common Shares deliverable upon the exercise of the Options must be increased or decreased proportionately, as the case may be.

 

3.3.2.

Any Common Shares issued pursuant to this Agreement will be “restricted securities”, as that term is defined in Rule 144(a)(3), promulgated by the United States Securities and Exchange Commission under the Securities Act of 1933, as amended, and will bear such restrictive legends as may be required by the applicable securities laws, rules and regulations.

  3.4.

 

 

3.4.1.

The Contractor will be responsible for all costs associated with the performance of the Consulting Services, except as noted in Paragraphs 3.4.2 through 3.4.4 below.

 

3.4.2.

Unless otherwise agreed by the parties, the Consulting Services will be provided at the Company’s office located in Vancouver, British Columbia.  The Company must provide office space, equipment (including necessary computing equipment and software), furniture and supporting personnel at the Company’s premises to the Contractor at no cost to the Contractor.

 

3.4.3.

In the event that the parties agree that the Consulting Services will be provided at a location other than Vancouver, British Columbia, the Company will pay to the Contractor all reasonable moving expenses incurred by the Contractor.

 

3.4.4.

The Contractor will be reimbursed by the Company for out of pocket expenses incurred on behalf of the Company in the course of providing the Services, as supported by copies of receipts and other documentation.

4.1.

4.2.

4.3.

 

4.3.1.

Notwithstanding Paragraph 4.1, this Agreement will be terminated:

 

(a)

without Cause by the Company, upon payment by the Company to the Contractor of the Termination Fee;

 

(b)

without Cause by the Contractor, upon thirty (30) days’ written notice from the Contractor to the Company; or

 

(c)

with Cause by the Company, immediately upon the Company giving notice in writing to the Contractor, which notice must state the nature and substance of the Cause.

 

4.3.2.

Upon termination of this Agreement for any reason:

 

(a)

the Company must immediately pay to the Contractor all accrued and unpaid portions of the Consulting Fees due up to the date of termination as well as any Expenses properly incurred prior to the date of termination;

 

(b)

the Contractor must, upon receipt of all sums due and owing, promptly deliver the following in accordance with the directions of the Company:

 

(i)

a final accounting, reflecting the balance of expenses incurred on behalf of the Company as of the date of termination;

 

(ii)

all documents pertaining to the Company or this Agreement, including but not limited to all books of account, correspondence and contracts; and

 

(iii)

all equipment and any other property belonging to the Company.

4.4.

5.1.

It is expressly agreed that the Contractor is acting as an independent contractor in performing the Consulting Services under this Agreement.

5.2.

Finkelstein will, subject to Vacation Time, be available to the Company 80% of his working hours.

5.3.

The Contractor is not precluded from acting in any other capacity for any other person, firm or company provided that it does not, in the reasonable opinion of the Board, conflict with the Contractor’s duties to the Company while providing the Consulting Services.

5.4.

The Contractor and Finkelstein, jointly and severally, represent and warrant to the Company that:

 

5.4.1.

each of the Contractor and Finkelstein has the right to perform the Consulting Services without violation of its obligations to others;

 

5.4.2.

neither of the Contractor or Finkelstein is bound by any agreement or obligation to any other party that will conflict with their respective obligations as a Contractor of the Company; and

 

5.4.3.

all advice, information, and documents provided by each of the Contractor and Finkelstein to the Company in the course of providing the Consulting Services may be used fully and freely by the Company, unless the Contractor or Finkelstein otherwise advises the Company orally or in writing at the time of communication of such information (e.g. information provided by the Contractor or Finkelstein on a confidential or non-attribution basis).

5.5.

The remuneration set out at Section 3 herein will be the whole of the compensation to the Contractor and Finkelstein for providing the Consulting Services.  For avoidance of doubt, the Company will not pay any contribution to Canada Pension Plan, employment insurance, or federal and provincial withholding taxes, or provide any other contributions or benefits, or similar amounts under any federal, provincial or state laws, which might be expected in an employer-employee relationship, as compensation for the Consulting Services.

5.6.

The Contractor is solely responsible for the Contractor’s registration and payment of assessments for coverage for Finkelstein or the Contractor with WorkSafeBC or similar requirements under federal, provincial or state laws of other jurisdictions, while the Contractor or Finkelstein is providing the Consulting Services.  If requested by the Company, the Contractor will provide proof of coverage.

5.7.

The Contractor and Finkelstein jointly and severally indemnify the Company against, and agree to hold it harmless from, all losses, claims, actions, damages, charges, taxes, penalties, assessments or demands (including reasonable legal fees and expenses) which may be made by the Canada Revenue Agency, Employment Insurance Plan, the Canada Pension Plan, the Workers Compensation Plan, or related plans or organizations, or similar bodies or plans under federal, provincial or state laws in other jurisdictions, requiring the Company, Finkelstein or the Contractor to pay an amount under the applicable statutes and regulations in relation to any Consulting Services provided to the Company pursuant to this Agreement.  This paragraph will survive termination of this Agreement.

6.1.

All Confidential Information, whether it is developed by Finkelstein and/or the Contractor during this consulting retainer or by others employed or engaged by

 

or associated with the Company or its affiliates or clients, is the exclusive and confidential property of the Company or its affiliates or clients, as the case may be, and will at all times be regarded, treated and protected as such, as provided in this Agreement.

6.2.

As a consequence of the acquisition of Confidential Information, the Contractor and Finkelstein will occupy a position of trust and confidence with respect to the affairs and business of the Company.  In view of the foregoing, it is reasonable and necessary for the Contractor, joined by Finkelstein, to make the following covenants regarding the conduct of each of the Contractor and Finkelstein during and subsequent to the Contractor’s retainer by the Company:

 

6.2.1.

At all times during and subsequent to the Contractor’s retainer with the Company, neither the Contractor nor Finkelstein will disclose Confidential Information to any person other than as necessary in carrying out the Consulting Services, or as may be required by applicable law or legal process of discovery, without first obtaining the Company’s consent, and the Contractor and Finkelstein will each take all reasonable precautions to prevent inadvertent disclosure of any Confidential Information disclosed by the Company to him.  This prohibition includes, but is not limited to, disclosing or confirming the fact that any similarity exists between the Confidential Information and any other information.

 

6.2.2.

At all times during and subsequent to the Contractor’s retainer with the Company, neither the Contractor nor Finkelstein will use, copy, transfer or destroy any Confidential Information other than as necessary in carrying out the Consulting Services, or as may be required by applicable law or process of discovery, without first obtaining the Company’s consent and the Contractor and Finkelstein will each take all reasonable precautions to prevent inadvertent use, copying, transfer or destruction of any Confidential Information disclosed by the Company to either or both of them.

 

6.2.3.

Within ten (10) business days after the termination of the Contractor’s retainer for any reason, the Contractor and Finkelstein will promptly deliver to the Company all property of or belonging to or administered by the Company in its custody, including without limitation all Confidential Information that is embodied in any form, whether in hard copy or on electronic media.

 

6.2.4.

The provisions of this Section 6 shall survive the expiration or earlier termination of this Agreement.

6.3.

Consent to Enforcement.  The Contractor and Finkelstein each confirms that all restrictions in this Section 6 are reasonable and valid, and any defences to the strict enforcement thereof by the Company are waived by the Contractor and Finkelstein.  Without limiting the generality of the foregoing, the Contractor and

 

Finkelstein each hereby consents to an injunction being granted by a court of competent jurisdiction in the event that the Contractor or Finkelstein is in breach

 

of any of the provisions stipulated in this Section 6.  The Contractor and Finkelstein each hereby expressly acknowledges and agrees that injunctive relief is an appropriate and fair remedy in the event of a breach of any of the said provisions.

6.4.

The Contractor’s obligations under this Section 6 will remain in effect in accordance with their terms and continue in full force and effect despite any breach, repudiation, alleged breach or repudiation, or termination of this Agreement.  Without limiting the foregoing, the Contractor and Finkelstein each agrees that at all times during and subsequent to the provision of services to the Company, neither of the Contractor or Finkelstein will use or take advantage of the Confidential Information for the purpose of

 

6.4.1.

providing similar management and technical services for any other company, or

 

6.4.2.

for a period of one year after the date of expiration or any earlier termination of this Agreement, for staking, or otherwise acquiring an interest in mineral properties adjacent to the mineral properties that the Company has an actual legal or beneficial interest in, or that the Company is considering acquiring a legal or beneficial interest in at the time the Consulting Services were performed or this Agreement expires or is terminated.

7.1.

Assignability.  This Agreement is not assignable by either party and the Consulting Services must not be provided by any person other than Finkelstein.

7.2.

Authorization.  The Company represents and warrants that it is fully authorized and empowered to enter into this Agreement and perform its obligations hereunder, and that performance of this Agreement will not violate any agreement between the Company and any other person, firm or organization nor breach any provisions of its constating documents or governing legislation.

7.3

No Other Agreement.  This Agreement and the Schedules hereto cancel and supersede any existing agreement or other arrangement between the Company and the Contractor.

7.3.

 

7.3.1.

This Agreement may not be amended unless such amendment is agreed to in writing and signed by the Contractor and an authorized officer of the Company.

 

7.3.2.

No waiver by either party hereto of any breach by the other party hereto of any condition or provision contained in this Agreement to be performed by such other party will be deemed a waiver of any similar or dissimilar condition or provision.  Any waiver must be in writing and signed by the Contractor or an authorized officer of the Company, as the case may be.

 7.4

 

7.5.

Governing Law.  This Agreement will be construed and interpreted in accordance with the laws of the Province of British Columbia applicable therein, and will be treated in all respects as a British Columbia contract.  The parties irrevocably attorn to the exclusive jurisdiction of the courts of British Columbia with respect to any legal proceedings arising under this Agreement.

7.6.

Dispute Resolution.  Any dispute or controversy occurring between the parties hereto relating to the interpretation or implementation of any of the provisions of this Agreement will be resolved by arbitration.  Such arbitration will be conducted by a single arbitrator appointed by agreement between the parties, or, in default of agreement, such arbitrator will be appointed in accordance with the provisions of the Commercial Arbitration Act of British Columbia or any re-enactment or amendment thereof.  Any arbitration will be held in the City of Vancouver.  The rules of procedure to be followed will be the domestic rules of procedure of the British Columbia International Commercial Arbitration Centre then in force.  The decision arrived at by the arbitr ator will be final and binding and no appeal will lie therefrom.

7.7.

Notices. Any notice in writing required or permitted to be given hereunder must be given by registered mail, postage prepaid, mailed in British Columbia to the following addresses, or may be delivered by courier or personally.

 

7.7.2.

in the case of the Contractor:

7.9.

Severability.  If any provision contained herein is determined to be void or unenforceable for any reason, in whole or in part, it will not be deemed to affect or impair the validity of any other provision contained herein and the remaining provisions will remain in full force and effect to the fullest extent permissible by law.

7.10.

Currency.  Except as expressly provided in this Agreement, all amounts in this Agreement are stated and will be paid in Canadian currency.

7.11.

Further Assurances.  Each of the Contractor and the Company will do, execute and deliver, or will cause to be done, executed and delivered, all such further acts, documents and things as the Contractor or the Company may reasonably require for the purposes of giving effect to this Agreement.

7.12.

Counterparts/Facsimile Execution. This Agreement may be executed in several counterparts and each counterpart will together constitute one original document.

7.13.

Parties’ Acknowledgement. The parties hereto hereby acknowledge that:

 

7.13.2.

the terms of this Agreement and the obligations hereunder have been read and are understood; and

JOINED by JEFFREY FINKELSTEIN for the reasons expressed above, who signed in the presence of:

 

/s/ Ethan Minsky
Signature

 

Ethan Minsky
Print Name

 

800 885 West Georgia Street
Vancouver, BC  V6C 3H1
Address

 

Solicitor
Occupation

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/s/ Jeffrey Finkelstein

 

·

Assist in performing all tasks necessary to achieve the Company's mission and help execute staff succession, growth plans and good corporate governance.

 

·

Ensure  the accurate and timely reporting of all material changes in the affairs of the Company and the material facts related to the Company, in accordance with applicable securities legislation and regulations,  and administer and assist with relations with all regulatory agencies, relations with the Company’s auditors, relations with the Company’s legal service providers and the Company’s public and investor relations programs, in effect being responsible for all aspects related to disclosure controls and procedures, preparation and filing of periodic reports and material change reports;

 

·

Train the Finance Unit and other staff on raising awareness and knowledge of financial management matters, including internal controls over financial matters and disclosure controls and procedures.

 

·

Work with the CEO on the strategic vision including fostering and cultivating stakeholder relationships on city, state, provincial and national levels, as well as assisting in the development and negotiation of contracts.

 

·

Participate in developing new business, specifically: assist the CEO in identifying new funding opportunities, the drafting of prospective programmatic budgets, and determining cost effectiveness of prospective service delivery.

 

·

Assess the benefits of all prospective contracts and advise the CEO on programmatic design and implementation matters.

 

·

Ensure adequate controls are installed and that substantiating documentation is approved and available such that all expenditures may pass independent audits.

 

·

Preparation and analysis of annual budgets

 

·

Oversee the management and coordination of all fiscal reporting activities for the organization including: organizational revenue/expense and balance sheet reports, reports to funding agencies, development and monitoring of organizational and contract/grant budgets.

 

·

Oversee all purchasing and payroll activity for staff and participants.

 

·

Develop and maintain systems of internal controls to safeguard financial assets of the organization.  Oversee the coordination and activities of independent auditors ensuring all accounting and audit issues are resolved, and all regulatory compliance issues are met, and the preparation of the annual and quarterly financial statements and MD&A is in accordance with U.S. GAAP (or IFRS if the Company elects to account in IFRS) and federal, state and other required supplementary schedules and information.

 

 

 

·

Conduct or carry out other duties, responsibilities and special projects as directed by the CEO.